CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 240/22
In the matter between:
SOUTH AFRICAN IRON AND STEEL INSTITUTE First Applicant
FERTILIZER ASSOCIATION
OF SOUTHERN AFRICA Second Applicant
ARCELORMITTAL SOUTH AFRICA LIMITED Third Applicant
H PISTORIUS & KIE PROPRIETARY LIMITED Fourth Applicant
and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
CHAIRPERSON OF THE NATIONAL
COUNCIL OF PROVINCES Second Respondent
MINISTER OF FORESTRY, FISHERIES
AND THE ENVIRONMENT Third Respondent
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA Fourth Respondent
SPEAKER OF THE EASTERN CAPE
PROVINCIAL LEGISLATURE Fifth Respondent
SPEAKER OF THE FREE STATE
PROVINCIAL LEGISLATURE Sixth Respondent
SPEAKER OF THE GAUTENG
PROVINCIAL LEGISLATURE Seventh Respondent
SPEAKER OF THE KWAZULU-NATAL
PROVINCIAL LEGISLATURE Eighth Respondent
SPEAKER OF THE LIMPOPO
PROVINCIAL LEGISLATURE Ninth Respondent
SPEAKER OF THE MPUMALANGA
PROVINCIAL LEGISLATURE Tenth Respondent
SPEAKER OF THE NORTHERN CAPE
PROVINCIAL LEGISLATURE Eleventh Respondent
SPEAKER OF THE NORTH WEST
PROVINCIAL LEGISLATURE Twelfth Respondent
SPEAKER OF THE WESTERN CAPE
PROVINCIAL LEGISLATURE Thirteenth Respondent
Neutral citation: South African Iron and Steel Institute and Others v Speaker of the
National Assembly and Others [2023] ZACC 18
Coram: Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ,
Mathopo J, Potterill AJ, Rogers J and Theron J
Judgment: Mathopo J (unanimous)
Heard on: 21 February 2023
Decided on: 26 June 2023
Summary: [National Environmental Management Laws Amendment Act 2 of
2022] — [sections 59(1)(a) and 72(1)(a) the Constitution] —
[constitutional obligation to facilitate public involvement ] —
[amended definition of “waste”] — [declaration of invalidity]
ORDER
MATHOPO J
3
On application for direct access to the Constitutional Court:
1. It is declared that Parliament has failed to comply with its constitutional
obligation to facilitate public involvement in terms of sections 59(1)(a)
and 72(1)(a) the Constitution in respect of the following provisions of the
National Environmental Management Laws Amendment Act 2 of 2022:
a. The amended definition of “waste” in section 61(k);
b. The new definition of “commercial value” in section 61(c);
c. The new definition of “trade in” in section 61(j); and
d. The transitional provision in section 88.
2. The said provisions are accordingly declared invalid and unconstitutional.
3. The first and second respondents are directed, jointly and severally, to pay
the applicants’ costs, including the costs of two counsel.
JUDGMENT
MATHOPO J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J Makgoka AJ,
Potterill AJ, Rogers J and Theron J concurring):
Introduction
[1] This is an application invoking this Court’s exclusive jurisdiction in terms of
section 167(4)(e) of the Constitution. 1 It concerns an alleged failure by Parliament to
comply with its constitutional obligations to facilitate public involvement, in breach of
sections 59(1)(a) and 72(1)(a) of the Constitution. 2 The constitutional c hallenge is
directed at specific provisions of the National Environmental Management Laws
1 This section provides that “[o]nly the Constitutional Court may decide that Parliament or the President has failed
to fulfil a constitutional obligation”.
2Section 59(1)(a) provides that the National Assembly (NA) must facilitate public involvement in the legislative
and other processes of the NA and its committees. Section s 72(1)(a) and 118(1)(a) contain similar provisions
relating to the National Council of Provinces (NCOP) and the Provincial Legislatures.
MATHOPO J
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Amendment Act3 (NEMLA Act) that amend the definition of “waste” in the National
Environmental Management : Waste Act 4 (Waste Act) and insert other related
provisions into the Waste Act. The NEMLA Bill was assented to on 24 June 2022 but
has not yet been brought into operation.
[2] The central issue in this case is whether material amendments to a Bill without
further public involvement passes constitutional muster. There are two aspects that
must be addressed : first, whether the amendments are material, and second, whether
these amendments triggered the need for further public involvement.
Parties
[3] The first applicant is the South African Iron and Steel Institute (SAISI) . SAISI
represents the collective interests of the South African primary steel industry . Its
members include three carbon steel producers and South Africa ’s only stainless -steel
producer. One of its members is ArcelorMittal South Africa Limited (AMSA), the third
applicant in this matter.
[4] The second applicant is the Fertilizer Association of Southern A frica
(FERTASA). FERTASA represents the fertili zer industry in Southern Africa with its
members producing, trading, blending and distributing fertilizer products across the
region. Through FERTASA, the applicants wish to be heard and to call for public
participation in respect of the impugned amendments.
[5] The first respondent is the Speaker of the National Assembl y (NA), who is
elected in terms of section 52 of the Constitution. The second respondent is the
Chairperson of the National Council of Provinces ( NCOP), who is elected in terms of
section 64 of the Constitution. The third respondent is the Minister of Forestry,
Fisheries and the Environment (Minister), who is the national executive responsible for
3 2 of 2022.
4 59 of 2008.
MATHOPO J
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the implementation of the legislation in issue. The fourth respondent is the President of
the Republic of South Africa (President) cited in his official capacity as the head of the
national executive . The fifth to the thirteenth respondents are cited in their official
capacities as Speakers of the Provincial Legis latures across the country. Only the first
and second respondents oppose the application. The Minister, while not opposing, has
filed an explanatory affidavit.
Background
[6] The Waste Act is environmental legislation, falling within the ambit of the
National Environmental Management Act . The Waste Act establishes a regulatory
regime governing the management of waste. The pre-amendment (that is, the current)
definition of “waste” in the Waste Act reads:
“(a) any substance, mater ial or object, that is unwa nted, rejected, abandoned,
discarded or disposed of, or that is intended or required to be discarded or
disposed of, by the holder of that substance, material or object, whether or not
such substance, material or object can be re -used, recycled or recovere d and
includes all wastes as defined in Schedule 3 to this Act;
(b) any other substance, material or object that is not included in Schedule 3 that
may be defined as a waste by the Minister by notice in the Gazette,
but any waste or portion of waste, referred to in paragraphs (a) and (b) ceases
to be waste—
(i) once an application for its re -use, recycling or recovery has been
approved or, after such approval, once it is, or has been re -used,
recycled or recovered;
(ii) where approval is not required, once a waste is, or has been re -used,
recycled or recovered; or
(iii) where the Minister has, in terms of section 74, exempted any waste or
a portion of waste generated by a particular process from the definition
of waste; or
(iv) where the Minister has, in the prescribed manner, excluded any waste
stream or a portion of waste stream for the definition of waste.”
MATHOPO J
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[7] On 16 September 2015 , the National Environmental Management Laws
Amendment Bill (Bill) was approved by Cabinet. On 13 October 2015, the Min ister
published a notice in the Government Gazette in which he invited public comment on
the Bill. The closing date for public comment was 30 November 2015. This version of
the Bill proposed to insert the following new definiti on of “waste” into the Waste Act
(deletions from and additions to the existing definition are shown in strike-out text and
underlining respectively):
“(a) any substance, material or object, that is unwanted, rejected, abandoned,
discarded or disposed of, or that is intended or required to be discarded or
disposed of, by the holder of that substance, material or object, whether or not
such substance, material or object can be re -used, recycled or recovered and
includes all wastes as defined waste which eman ates from the sources in
Schedule 3 to this Act; or
(b) any other substance, material or object that is not included in Schedule 3 that
may be defined as a waste by the Minister by notice in the Gazette,
but any waste or portion of waste, referred to in paragraphs (a) and (b), ceases
to be a waste—
(i) once an application for its reuse, recycling or recovery has been
approved or, after such approval, once it is, or has been reused,
recycled or recovered and the waste or portion of waste is re -used,
recycled or recovered in accordance with the conditions in the
approval;
(ii) where approval is not required, once a waste is, or has been reused,
recycled or recovered;
(iii) where the Minister has, in terms of section 74, exempted any waste or
a portion of waste generated by a particular process from the definition
of waste; or
(iv) where the Minister has, in the prescribed manner, excluded any waste
stream or a portion of a waste stream from the definition of waste.”
[8] On 23 May 2017, the Bill was introduced in the NA . This version of the Bill
contained non-material changes to the definition of “waste” published in October 2015.
MATHOPO J
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Thereafter, the Bill was referred to the Portfolio Committee on Environmental Affairs
(Portfolio Committee).
[9] On 24 April 2018, public hearings were held where comments and
representations were made by a range of stakeholders . The Portfolio Committee
proceeded to prepare a “B” version of the Bill, reflecting its proposed amendments.
Again, the proposed amendments did not materially change the scope of “waste” from
the previous version . On 8 November 2018, the Portfolio Committee considered and
adopted the Bill with amendments. These amendments, which were unrelated to the
definition of “waste”, constituted the “D” version of the NEMLA Bill. The “D” version
contained the following definition of “waste” (deletions from and additions to the
existing definition are again shown in strike-out text and underlining):
“(a) any substance, material or object, that is unwanted, rejected, abandoned,
discarded or disposed of, or that is intended or required to be discarded or
disposed of, by the holder of that substance, material or object, whether or not
such substance, material or object can be reused, r ecycled or recovered and
includes all wastes as defined in Schedule 3 to this Act; or
(b) any other substance, material or object that is not included in Schedule 3 that
may be defined as a waste by the Minister by notice in the Gazette,
but any waste or portion of waste, referred to in paragraphs (a) and (b), ceases
to be a waste—
(i) once an application for its reuse, recycling or recovery has been
approved or, after s uch approval, once it is, or has been reused,
recycled or recovered and the waste or portion of waste is re -used,
recycled or recovered in accordance with the conditions in the
approval;
(ii) where approval is not required, once a waste is, or has been reused,
recycled or recovered; or
(iii) where the Minister has, in terms of section 74, exempted any waste or
a portion of waste generated by a particular process from the definition
of waste; or
(iv) where the Minister has, in the prescribed manner, excluded any waste
stream or a portion of a waste stream from the definition of waste”.
MATHOPO J
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[10] On 27 November 2018, the “D” version of the NEMLA Bill was passed by the
NA and transmitted to the NCOP for concurrence. A period of inactivity then followed,
resulting in the lapse of the NEMLA Bill in terms of the NA Rules in May 2019. The
Bill was subsequently revived by the NCOP on 17 October 2019.
[11] On 17 April 2020, the Supreme Court of Appeal handed down judgment in the
AMSA.5 The pre-amendment (that is, existing ) definition of waste was considered in
detail in this judgment . One of the primary issues was whether the pre -amendment
definition of “waste” applied to Basic Oxygen Furnace slag (BOF slag), an important
by-product of the steel -making process. 6 BOF slag has several commercial uses,
primarily in the road construction and agricultural sectors. In the agricultural sector, it
is used to condition soils and is specifically registered as a product in terms of the
Fertilizers Farm Feeds, Agricultural Remedies and Stock Remedies Act.7
[12] There, AMSA argued that BOF slag, at the point of sale and dispatch to
third parties, is not “waste” as it is not “unwanted, rejected, abandoned, discarded or
disposed of ”. Both the High Court and the Supreme Court of Appeal agreed with
AMSA’s interpretation. The Supreme Court of Appeal held that the existing definition
of waste is “clear and unequivocal”. “On a fair reading”, the Supreme Court of Appeal
held, “it becomes readily apparent that any substance, material or object that is not
‘unwanted, rejected, abandoned, discarded or disposed of’ does not fall within the ambit
of the definition”. The Court further held: “any substance, material or object that has
been recycled or recovered. . . ceases to be waste once recycled or re-used”.8
[13] The Supreme Court of Appeal confirmed that finished products, by -products
and co products of manufacturing processes, which a manufacturer intends to sell to
5 Minister of Environmental Affairs v ArcelorMittal South Africa Limited [2020] ZASCA 40.
6 Id at para 2.
7 36 of 1947.
8 AMSA above n 5 at para 41.
MATHOPO J
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customers, are not “waste”. The Department of Environmental Affairs (Department)
chose not to appeal the AMSA judgment.
[14] From June 2020 onwards, public participation hearings were conducted in the
provinces in respect of the “D” version of the Bill. The definition of “waste” in this
version of the Bill remained fundamentally unaltered. On 8 October 2020, the Gauteng
Provincial Legislature finalised its negotiating mandate in respect of the “D” version of
the Bill. This mandate recorded that, based on the ongoing discussions on the definition
of waste, “the definition should be simple and unambiguous” . It went on to state that
the AMSA judgment —
“points to the need for the definition to allow for rational, risk -based beneficiation of
waste without the need for any waste management licence or compliance with th e
National Environmental Management: Waste Act , as the material in question would
not be considered a waste.”
[15] In June 2021, the NCOP Select Committee convened a virtual meeting to
consider the mandates from the Provincial L egislatures. This was not a
public participation meeting. In response to a proposal from the Gauteng Provincial
Legislature’s delegates that the definition of “waste” be simplified, the Department
instead offered an entirely new definition. The new definition of “waste” was as follows
(again, deletions from and additions to the existing definition are shown in strike -out
text and underlining):
“(a) any substance, material or object, that is unwanted, rejected, abandoned, discarded or
disposed of, or that is intended or required to be discarded or disposed of, by the holder of that
substance, material or object, whether or not such substance, material or object can be reused,
recycled or recovered and includes all wastes as defined in Schedule 3 to this Act; or
(a) any substance, material or object –
that the generator of that substance, material or object has no further use for
within its own processes, whether or not it has any commercial value for the
MATHOPO J
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generator, but which can be re-used, recycled, recovered and traded in by any
person; or
(i) that is rejected, abandoned, discarded or disposed of, either temporary
or permanently, or is intended to be discarded or disposed of by the
generator of that substance, material or object, regardless of whether
or not that substance, material or object has any commercial value for
the generator or can be re-used, recycled, recovered or traded in by any
person; or
(b) any other substance, material or object that is not included in Schedule 3 that
may be defined as a waste by the Minister by notice in the Gazette,
but any waste or portion of waste, referred to in paragraphs (a) and (b), ceases
to be a waste—
(aa) once it is re -used, recycled or recovered or traded in by the
holder of that waste or portion of waste in accordance with a
conditions stipulated in a valid waste management licence,
where applicable, or in accordance with and applicable law or
standard made in terms of this Act;
(bb) where the Minister has, in the prescribed manner, excluded the
holder of any waste stream or a portion of a waste stream from
the definition of waste, enabling the holder thereof to trade in
the excluded waste stream or portion of the excluded waste
stream, provided that the holder has satisfied the requirements
of proving the environmentally safe use of the waste stream or
portion of waste stream by it or any other person and
committed to provide the Minister with annual reports of the
use thereof.
(i) once an application for its reuse, recycling or recovery has been approved or, after
such approval, once it is, or has been reused, recycled or recovered;
(ii) where approval is not required, once a waste is, or has been reused, recycled or
recovered;
(iii) where the Minister has, in terms of section 74, exempted any waste or a portion
of waste generated by a particular process from the definition of waste; or
(iv) where the Minister has, in the prescribed manner, excluded any waste stream or
a portion of a waste stream from the definition of waste.”
MATHOPO J
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[16] The amended definition included any substance for which the manufacturer had
no further use within its own processes, whether or not the substance had commercial
value. The phraseology, “unwanted, rejected, abandoned, dis carded or disposed of”
was omitted. Various consequential amendments, including definitions of
“commercial value” and “trade in”, as well as an entirely new transitional provision to
cater for the new definition of “waste”, were inserted. Far from streamlining the
definition, the Department’s new definition radically expanded its scope. The NCOP
Select Committee endorsed the Department’s proposal without any discussion,
questioning or debate on its implications.
[17] The applicants’ representatives first learnt of this new definition several weeks
later on the Parliamentary Monitoring Group website. In July 2021, SAIS I and
FERTASA expressed their concerns in letters addressed to the Department and the
Chairperson of the NCOP Select Committee and requested a further public participation
process on the amended definition. These letters raised the concern that the amended
definition was a significant departure from the previous definition contained in the
Waste Act and would have significant implications for their industries.
[18] On 16 November 2021, the proposed amendments were introduced to the NCOP
Select Committee as part of the “E-List” of amendments to the Bill. This reflected the
Department’s new proposed definition of “waste” and the conseque ntial amendments
following from that proposal, in identical terms to the proposa ls considered on
15 June 2021.
[19] On 14 December 2021, the amended NEMLA Bill – the “F” version – was passed
by the NCOP, without any further public participation, and was returned to the NA for
its concurrence.
[20] In February 2022, the NA Portfolio Committee was advised that the NCOP had
made “considerable amendments to the Bill”. However, the NA and the
Portfolio Committee did not attempt to facilitate further public partic ipation. On
MATHOPO J
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1 March 2022, the NEMLA Bill was passed by both houses of Parliament and was sent
to the President for his assent. This final version of the NEMLA Bill received the
President’s assent on 24 June 2022. It was substantially similar in terms to the
15 June 2021 proposals by the Department, the “E -List”, and the “F” version s. The
definition of “waste” was identical to the “F” version. In terms of section 89 of the
NEMLA Act, the Act will “ come into operation on a date fixed by the President by
proclamation in the Gazette”. That proclamation is still pending. Dissatisfied with the
processes, the applicants launched a constitutional challenge in this Court.
In this Court
[21] The applicants’ complaint is that during the legislative process leading to the
enactment of the Bill, the NCOP and the Provincial Legislatures did not comply with
their constitutional obligations to facilitate further public participation in their
legislative processes as required by the Constitution. The applicants c ontend that
although they were afforded an opportunity to participate in the legislative process
leading to the “D” version of the Bill , they were not afforded an opportunity to make
representations when the new definition of waste (the “E” and “F” version s), which
introduced material amendments and transitional provisions, was proposed.
[22] The applicants further contend that Parliament was aware that the amendments
were material as they included transitional provisions in section 88 of the NEMLA Act,
which, among others, acknowledges that products that were not previously regarded as
“waste” now fall within the definition. In addition, a new class of persons who did not
previously fall within the definition would now be affected by the new amendment and
required to comply with the detailed regulatory requirements of the Act.
[23] While conceding that further public participation was not conducted, the
respondents deny the allegation by the applicants that they were not given an
opportunity to comment on the amended definition of waste and contend that the
applicants were given adequate opportunity in relation to the definition of waste , and
fully participated in all parliamentary processes and had ongoing engagements with the
MATHOPO J
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Department. The respondents emphasise that during this process, the views of members
of the public, including their views on the scope and content of the definition of waste,
were considered.
[24] The respondents dispute that the amendments are material and instead submit
that while they are important, they retain the conceptual framework contained in the
initial versions of the Bill . The respondents assert that it would be impractical and
unrealistic for new public comment processes to be initiated every time an amendment
is made to a draft Bill. If this were required of Parliament, it would delay it from
enacting laws timeously. To buttress their argument, the respondents contend that those
consulted are expected to express themselves exhaustively on the issues for consultation
when they are invited to do so. According to the respondents, the definition of “waste”
was one such issue on which the public was reasonably consulted. No prejudice would
be suffered by the public because Parliament intended to rework the definition of waste
to provide clarity and to better meet the objectives of waste regulation.
[25] Finally, t he respondents asser t that both the NCOP and the various
Provincial Legislatures complied with the duty to facilitate public involvement in the
legislative process. They further contend that it is impermissible to assess the legislative
processes in a piecemeal fashion . Rather, a holistic approach must be adopted when
assessing the constitutionality of the process.
Jurisdiction
[26] The applicants have approached this Court directly and assert that this Court has
jurisdiction over the present dispute because it implicates the question of whether
Parliament has fulfilled its co nstitutional obligation to facilitate public involvement .
Whether this Court has jurisdiction under s ection 167(4)(e) to decide the dispute
depends on two matters. First, whether sections 59(1)(a) and 72(1)(a) imposes an
obligation on the NA, NCOP and Provincial Legislatures to facilitate public
involvement in its legislative processes and those of its committees. The second
question is whether the obligation to facilitate public involvement is the kind of
MATHOPO J
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obligation contemplated in se ction 167(4)(e) , this was answered definitively in
Doctors for Life9 – the respondents did not contest this. They also do not dispute that
the applicants have legal standing to bring this application.
Issues
[27] As stated earlier, t he overarching issue in t his case is whether the NA, NCOP
and Provincial L egislatures failed to comply with their constitutional obligation s to
facilitate public involvement as contemplated in section s 59(1)(a) and 72(1)(a) of the
Constitution. If the processes followed by the NA, NCOP and Provincial Legislatures
do not pass constitutional muster, then we must consider what is the appropriate relief,
taking into account that the President has not yet proclaimed the effective date of the
Bill.
Analysis
The materiality of the impugned amendments
[28] South Africa is a constitutional democracy that upholds representative and
participatory democracy. The purpose of public participation and involvement in
democratic processes is primarily to influence decision-making processes that affect the
will of the people. Public participation is premised on the belief that those who are
affected by a decision have the right to be involved in the decision -making process.
Central to this is the acknowledgment that institutions with decision -making powers
must involve those who are likely to be affected by such decisions.
[29] Since the first democratic Parliament of the Republic of South Africa, its vision
has been and remains to build a truly representative people’s Parliament . The
facilitation of public participation and involvement in its processes remains central to
the mandate of Parliament. According to section 42(1) of the Constitution, Parliament
9 Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) ;
2006 (12) BCLR 1399 (CC).
MATHOPO J
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consists of the NA and the NCOP. The NA is responsible for , amongst other things ,
passing laws, ensuring that members of the executive perform their work properly, and
providing a forum where the representatives of the people can publicly debate issues.
The NCOP consists of 90 provincial delegates – each of the nine provinces are allocated
10 deleg ates. Therefore, each province is equally represented in the NCOP . The
Constitution provides that the NCOP represents the provinces to ensure that provincial
interests are taken into account in the national sphere of government. The NCOP does
this mainl y by participating in the national legislative process, and by providing a
national forum for public debate o n important issues affecting the provinces. The
NCOP also ensures that local government concerns are represented at the highest level.
[30] Public participation standards must be consistent with constitutional prescripts
and legal requirements which include informing, educating and creating meaningful
opportunities for the public to participate in decision making on issues that affect
them.10 Reporting, feedback, monitoring and evaluation are pivotal for the process of
tracking outcomes of a given public participation opportunity thereby ensuring effective
public participation.11 It is important that as a bill progresses through different stages,
the public must be informed and consulted. Information is therefore an absolute
prerequisite for effective public participation. Public participation processes should
provide for stages of participation that are commensurate with the level of
public interest.
[31] Doctors for Life states:
“All parties interested in legislation should feel that they have been given a real
opportunity to have their say, that they are taken seriously as citizens and that their
views matter and will receive due consideration at the moments when they could
possibly influence decisions in a meaningful fashion. The objective is both symbolical
and practical: the persons concerned must be manifestly shown the respect due to them
10 South Afr ican Parliame nt “Chapter 5 P ublic Participation Model ” at para 5.3.1 . A vailable at :
Parliament_Public_Participation_Model.pdf
11 Id.
MATHOPO J
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as concerned citizens, and the legislators must ha ve the benefit of all inputs that will
enable them to produce the best possible laws.”12
[32] Public participation is a process in which the public is engaged in a given matter
of public interest for the purpose of obtaining their views with the aim of ensuring the
process is fair, reasonable and that the public is heard.
[33] In considering whether the final version of the Bill introdu ced a material
amendment or not, the starting point is the examination of the definition of waste before
and after the amendments and the regulatory scope of the Waste Act. The two versions
which require comparison are the “D” version on the one hand and the “F” (and enacted)
version on the other. The applicants do not complain of a lack of public participation
up to and including t he “D” version; their complaint is about the lack of participation
thereafter. On a plain reading of the two definitions of “waste”, they are remarkably
different, with the revised defini tion being far more expansive. T he impugned
amendments significantly sought to amend the definition of waste in the Act by the
insertion of sections 61(k) ,13 61(c)14 and 61(j) ,15 as well as the introduction of
transitional provisions in section 88.
[34] Significantly, it was the Department’s case that the definition introduced by way
of the “E -list” changes were in part designed to counteract the Supreme Court
of Appeal’s decision in AMSA. Up to and including the “D” version of the Bill, the
AMSA decision would have remained applicable, despite the superficial adjustments to
the definition of “waste”. The “F” version, by contrast, swept the AMSA decision aside,
since the Supreme Court of Appeal’s reasoning would no longer be justified by the
revised wording of the definition. It is idle, in the circumstances, for the respondents to
contend that the late change in definition was not material.
12 Doctors for Life above n 9 at para 235.
13 The amended definition of “waste” in section 61(k).
14 The new definition of “commercial value” in section 61(c).
15 The new definition of “trade in” in section 61(j).
MATHOPO J
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[35] All these amendments were introduced in June 2021, long after the period for
public comment and publi c hearings had been concluded. The materiality of these
amendments usher ed in a new way of dealing with and defining waste. Up to
version “D”, the definition of waste was described as “any substance, material or object,
that is unwanted, rejected, abandoned, discarded or disposed of, or that is intended or
required to be discarded or disposed of”. The “F” version which then found expression
in the NEMLA Act sought to expand this definition to include “wanted” materials for
which a generator has “no further use for within its own processes, whether or not it has
any commercial value for the generator.”
[36] The effect of this amendment of the definition of waste was that a vast range of
products, co-products and by-products that were never regulated as waste before, would
now be subject to the onerous requirements of the Waste Act, with significant
consequences including new regulatory requirements that have costs implications. In
addition to the requirements envisaged in the transitional provisions which will be
discussed below, section 20 of the Waste Act states that no person may perform a waste
management activity except in accordance with a waste management licence or, if no
licence is required, in terms of prescribed requirements or standards. Breach of this
section could result in severe penalties, including up to 10 years ’ imprisonment, a fine
of up to R10 million, or both.
[37] To further bolster the point that the amendments were material by virtue of the
insertion of the transitional provisions as envisaged in section 88 of the NEMLA Act,
it is important to note that subsection (2) requires the person in control of the substance,
material or object, within 60 days from the date of commenc ement of the amended
definition of waste, to:
“(a) apply for a waste management licence, if the person conducts an activity,
which is listed in terms of section 19(1) of the Principal Act;
(b) comply with a norm or standard, if the person conducts an activity listed in
terms of section 19(3) [Waste Act]; or
MATHOPO J
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(c) apply for the exclusion of the substance, material or object from the definition
of waste in the prescribed manner.”16
[38] Possible implications for producers and customers presented by the transitional
provision include:
(a) applying for an exemption in terms of section 74 of the Waste Act;
(b) ceasing the primary production activity which cause s the co -product or
by-product to be produced;
(c) ceasing the sale of the co -product or by-product and stockpiling these
products on site; and
(d) customers of the co -product themselves having to obtain a waste
management licence in order to utilise the product which is now to be
considered “waste”.
[39] According to the applicants, complying wit h these onerous requirements could
take at least one year. Obtaining a waste management licence would cost approximately
R500 000, depending on the complexity of the activity. In certain instances, a
manufacturer or consumer may require more than one was te management licence,
depending on the range of products, by-products and co-products as well as the relevant
waste management activity. There are also further onerous procedures that the
applicants would have to comply with before the waste management licence is granted,
and even then, it is not guaranteed that the licensing authority would grant the licence.
The applicants state that the procedure of obtaining a licence is “not clear, simple or a
fast procedure but rather an onerous, burdensome, length y and expensive procedure”.
They further assert that having to apply for a waste management licence within 60 days
would be impracticable, if not impossible. The repercussions for non -compliance are
significant; they include fines and imprisonment upon conviction.
16 Clause 88 of the “F” version of the Bill contained a substantially similar provision.
MATHOPO J
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[40] The definition of waste under the Waste Act is without question fundamentally
important. This is especially true when considering the fact that failure to comply with
the requirements of the Waste Act (most of which are inextricably linked to what
constitutes waste) carries severe consequences. Considering these facts, the changes
were not merely “semantic or technical”, but rather material.
[41] There are striking similarities between SA Veterinary17 and this matter. In SA
Veterinary, the NA added the word “veterinarian” to section 16 of the Medicines and
Related Substances Act ,18 which lists the medical professionals required to have a
licence in terms of that Act in order to compound and dispense medicines . The NA
failed to conduct further public consultations when and after the addition was made.19
This Court stated that the insertion of a word that materially affects a specific group is
exactly the situation for which the constitutional obligation of public participation has
been created.
[42] It was further alleged that the amendment materially changed the way that
veterinarians would be able to compound and dispense medicines. Further, the
amendment had the effect of bringing an entire profession under the control of
legislation that had previously never applied to it. This was not considered a technical
or semantic amendment. There, this Court held that the amendment constituted a
material a mendment to the Bill and would have lasting effects on the professiona l
operations of veterinarians.
17 South African Veterinary Association v Speaker of the National Assembly [2018] ZACC 49; 2019 (3) SA 62
(CC); 2019 (2) BCLR 273 (CC).
18 101 of 1965.
19 SA Veterinary above n 17 at para 46. This Court held:
“In summation, the insertion of the word “veterinarian” is a material amendment to the Bill.
This amendment was made by the NA without facilitating any public participation on this
aspect. This clearly falls short of the requirements in section 59(1)(a) of the Constitution.
Further, the NCOP, through the PLs, failed to properly facilitate public participation due to the
exceptionally short notice periods that they gave before public hearings, and the failure to invite
specific comment from members of the veterinary profession. Consequently, the insertion of
the word “veterinarian” was also done contrary to sections 72(1)(a) and 118(1)(a).”
MATHOPO J
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The duty to facilitate public involvement
[43] It is common cause that the proposed new amendments to the definition of waste
were first introduced, discussed and approved at a meeting held on 15 June 2021 by the
NCOP Select Committee. It must be remembered that the Gauteng mandate proposed
that the definition of waste be simplified. The Department also made further proposals
at the meeting with respect to the Bill. The public was not involved in this process. The
public was furnished with the proposed amendments after the meeting on 15 June 2021.
Those proposals were material – materiality triggers the need for further participation
and the respondents did not call for further submissions from the public . A
public participation process would have ensured that all interested and affected parties
had the opportunity to raise their concerns.
[44] The standard for adequate participation is one of reasonab leness. Recently this
Court in Mogale20 relying on Doctors for Life21 set out the factors to be considered when
determining whether public participation was reasonable. These include:
“The nature and importance of the legislation and the intensity of its impact on the
public are especially relevant. Reasonableness also requires that appropriate account
be paid to practicalities such as time and expense, which relate to the efficiency of the
law-making process. Yet the saving of money and time in itself does not justify
inadequate opportunities for public involvement. In addition, in evaluating the
reasonableness of Parliament’s conduct, this Court will have regard to what Parliament
itself considered to be appropriate public involvement in the light of the legislation’s
content, importance and urgency. Indeed, this Court will pay particular attention to
what Parliament considers to be appropriate public involvement. What is ultimatel y
important is that the legislature has taken steps to afford the public a reasonable
opportunity to participate effectively in the law-making process. Thus construed, there
are at least two aspects of the duty to facilitate public involvement. The first is the duty
to provide meaningful opportunities for public participation in the law-making process.
20 Mogale v Speaker of the National Assembly [2023] ZACC 14 at para 34.
21 Doctors for Life above n 9 at para 127.
MATHOPO J
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The second is the duty to take measures to ensure that people have the ability to take
advantage of the opportunities provided.”22
[45] This Court in New Clicks23 reiterated that “what matters is that at the end of the
day, a reasonable opportunity is offered to members of the public and all interested
parties to know about the issues and to have an adequate say.” In the matter before us,
there is no evidence that any measures were taken by the respondents to bring the
public’s attention to the impugned amendment s. Public views were simply brushed
aside and ignored. It is cold comfort for the applicants that there was
public participation in various earlier stages of the Bill, if the public was not kept
informed of the developments during the later stages of the Bill’s progress. SAISI and
FERTASA, on behalf of the steelmakers and the fertilizer industry, sent various letters
to the Department and NCOP asking for an opportunity to be heard in light of the
June 2021 developments. Sadly, their requests fell on deaf ears.
[46] The impugned amendments were not subject to any further public participation
process at either the national or provincial level . The a rgument that further
public participation was not necessary because the definition of waste remained
substantially the same throughout the process is unsustainable. Parliament should have
interrogated, specified and clarified the full import of the proposed amendments and
afforded the public an adequate opportunity to comment or make representations. That
argument is untenable and misses the vital point that it ushered in a new way in which
the concept of waste was to be construed. Equally uns ustainable is the respondents’
argument that the changes introduced by the amendments sought to narrow the class of
persons who bore obligation s under the Waste Act from all holders of waste to a
narrower category of generators of waste. Th ere was a significant chan ge in the
allocation of legal obligations between generators of waste and not a mere textual
adjustment.
22 Doctors for Life above n 9 at paras 128-9.
23 Minister of Health v New Clicks South Africa (Pty) Ltd [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1)
BCLR 1 (CC) at para 360.
MATHOPO J
22
[47] I accept that Parliament and the Provincial L egislatures must be accorded a
significant measure of discretion in determining how best to fulfil their duty to facilitate
public involvement.24 The NA, NCOP and the Provincial L egislatures should create
conditions that are conducive to the effective exercise of the right to participate in the
lawmaking processes. In Doctors for Life, this Court stated that a fundamental part of
the public participation process is public access which “allo ws the public to be present
when laws are debated and made” ,25 one that ensures that the public is afforded the
opportunity to “submit representations and submissions”.26
[48] In this case, no effort was made to further engage the public and afford them an
opportunity to submit their inputs on the impugned amendments. The argument that it
would be impractical and cumbersome for a new public comment process to be initiated
every time an amendment is made to a draft Bill is misconceived. During the initial
stages of the Bill, when amendments in the respects now under consideration were
superficial, members of the public were invited to comment. It begs the question, why
when the proposed amendments became material, the public was ignored and brushed
aside. This, in my view, tends to diminish the for ce of the respondents’ argument. It
was necessary for the NA, NCOP and the Provincial Legislatures to afford the public
an opportunity to submit inputs or comments on the impugned amendments given their
serious and far-reaching consequences.
[49] In facilitating public involvement , the relevant bodies (NA, NCOP,
Provincial Legislatures) must ensure that issues affecting the public in relation to
legislation under consideration are heard and considered by the public . The re is
no doubt that the proposed amendments generated a lot of interest in the public and , in
particular, the iron, steel and fertilizer industries. The concerns of the public for further
engagement were simply ignored. No legitimate basis was advanced as to why these
24 Mogale above n 20 at para 34.
25 Doctors for Life above n 9 at para 137.
26 Id.
MATHOPO J
23
processes were dispensed with. I am accordingly satisfied that, in all the circumstances
of this case, t he failure by the NA, NCOP and Provincial Legislatures to hold further
public hearing s was not in accordance with their obligations to facilitate public
involvement. In the result, the challenge relating to the impugned provisions of the
NEMLA Act must succeed.
Conclusion
[50] Section 172(1)(a) of the Constitution mandates this Court to declare such failure
by Parliament unlawful and invalid. The impugned provisions must be declared
unconstitutional and invalid owing to the procedural defects in their enactment. There
is no compelling reason to suspend the declaration of invalidity to give Parliament an
opportunity to correct the defect. The impugned amendments have not yet been brought
into force and there is no reason why the President should be entitled to bring into force
provisions that have not been subjected to public participation. It is my finding that the
declaration of invalidity will not lead to a regulatory vacuum as the preamendment (that
is, the current) definition of waste remains in force and there w ill be no lacuna in the
legislation. In its current form, the impugned provisions cannot be allowed to stand and
must be set aside forthwith. If Parliament wishes to proceed with the impugned
provisions in their current form, there is no reason why public participation would need
to be a lengthy exercise.
Order
1. It is declared that Parliament has failed to comply with its constitutional
obligation to facilitate public involvement in terms of sections 59(1)(a)
and 72(1)(a) of the Constitution in respect of the following provisions of
the National Environmental Management Laws Amendment Act 2 of
2022:
(a) The amended definition of “waste” in section 61(k);
(b) The new definition of “commercial value” in section 61(c);
(c) The new definition of “trade in” in section 61(j); and
MATHOPO J
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(d) The transitional provision in section 88.
2. The said provisions are accordingly declared invalid and unconstitutional.
3. The first and second respondents are directed, jointly and severally, to pay
the applicants’ costs, including the costs of two counsel.
For the Applicants:
For the First and Second Respondents:
G Marcus SC, C McConnachie and
Z Raqowa
Instructed by Bowman Gilfillan
Attorneys.
N Maenetje SC, N Muvangua and
N Stein
Instructed by State Attorney.